New Antitrust Laws from January 2010

Consumers and businesses at the end of a multi-level product distribution chain are often the hardest hit by a manufacturer’s anticompetitive behavior. But until recently, these “indirect purchasers” had no right of action under Oregon’s antitrust laws, even if they could prove that an illegal overcharge was passed on to them through the distribution chain.

For years Oregon has been among the few states without a remedy for indirect purchasers. After the U.S. Supreme Court’s 1977 decision Illinois Brick Co. v. Illinois, which held that consumers lack standing to bring a suit for damages under federal antitrust laws unless they purchased the product directly from the manufacturer, many states passed so-called “Illinois Brick repealer” statutes. These statutes allowed indirect purchasers to bring actions against antitrust violators under state law. Until this year, Oregon had not passed such a law. Oregon passed a partial repealer statute in 2001, allowing the Attorney General to bring an action for damages on behalf of indirect purchasers. But, due to the lack of resources, such actions were rarely brought by the State.

With the passage earlier this year of HB 2584 (which becomes effective January 1, 2010), indirect purchasers in Oregon will finally be able to take a stand against anti-competitive business practices affecting Oregonians. Oregonians could join consumers from numerous other states who are already pursuing claims for illegal price-fixing involving such products and services as: eggs and egg products; aftermarket auto lights; aftermarket oil, fuel and engine filters for cars; chocolate products; cathode ray tubes (CRTs), and televisions and computer monitors containing CRTs; thin film transistor (TFT) flat panel displays; SRAM computer memory; air cargo shipping services; and bulk Vitamin C and products containing Vitamin C.

Oregon’s antitrust indirect purchaser statute reflects the State’s commitment to the protection of its consumers, and complements the Obama Administration’s tougher stance on antitrust behavior in the marketplace. It should prove to be a powerful new tool for individual consumers and businesses in this State.